​Complaining Work

​Defending Work

Comment by Charles Cronin

This claim of copyright infringement is based on the defendant's use of several brief (and likely unprotectable) phrases used by the plaintiff in postings of mostly incomprehensible and profane verbal ramblings by a self-proclaimed "YouTube personality" Anthony Barre, who used the sobriquet "Messy Mya". Sadly, Barre is best known for having been murdered in New Orleans, and the notoriety of this crime led to Beyonce Carter's using the expressions found in some of Barre's YouTube postings: "Bitch I'm back", "Oh baby I like that", and "What happened at the New Orleans?" in her song that invokes the aftermath in New Orleans of Hurricane Katrina.

But the Complaint is cagey about whether the plaintiff asserts that Beyonce's recording contains samples of Barre's recordings, or simply includes Barre's unoriginal verbal expressions rendered in a voice similar to his: "Defendants have never denied the many media reports that Barre's voice and words were sampled by Defendants..."; "There should be no doubt that Barre's unique, gravelly voice, cadence and words were sampled by Defendants." But in case there is doubt, the Complaint also lodges a far-fetched Lanham Act claim that Beyonce's use of the phrases and similar sounds constitutes unfair trade practices and false endorsement. Does Beyonce really need the "endorsement" of a YouTube afficianado, virtually unknown until his tragic end?

Follow-up comment by Niall Fordyce

On February 5, 2018, Hon. Jolivette Brown signed an order dismissing this case with prejudice, and thus putting to rest the matter once and for all. Neither the Joint Stipulation of Dismissal nor the accompanying [proposed] order filed by the parties offered any detail whatsoever as to any settlement. Perhaps this should not come as a surprise – if Beyoncé et al agreed to pay Barré’s estate either a lump-sum or offer a share of proceeds from Formation going forward, it probably makes the most sense for Defendants to keep any / all settlement terms confidential.

This somewhat sudden end comes a little more than six months after the court ruled against Defendants on their Federal Rule of Civil Procedure 12(b)(6) motion to dismiss Plaintiffs’ complaint. In their motion to dismiss, Defendants claimed that their alleged infringing uses of spoken word samples from the late Anthony Barré (aka “Messy Mya”) were protected under the “fair use” doctrine, 17 U.S.C. §107.

“Fair use” permits certain unlicensed uses of copyright-protected works. Fair use is an affirmative defense “that can excuse what would otherwise be an infringing use of copyrighted material.” Cambridge Univ. Press v. Patton, 769 F.3d 1232, 1238 (11th Cir. 2014). Although any fair use analysis requires applying a highly complex four-part test, important in all fair use analyses is whether the alleged infringing use is “transformative,” that is, does the challenged use add something new to the original protected work? Does the use provide the original work with a “further purpose or different character,” while not substituting for the original use of the work?

Here, the court ruled that as a matter of law, it could not find that defendants’ uses of Messy Mya’s voice were protected as fair use, and thus denied Defendants’ motion to dismiss. The court pointed out that Plaintiffs had “plausibly alleged” that Defendants’ uses had not added anything transformative or created a different purpose or character to the original materials. Defendants had simply used unmodified clips from Messy Mya videos.

In addressing the additional three fair use factors, the court determined that Plaintiffs’ works “are creative and published,” auguring against a finding of fair use; that even though the amount of copyrighted material allegedly appropriated by Defendants was quantitatively small, the portions used “were qualitatively significant,” also working against a finding of fair use; and that even though Plaintiffs had not alleged in their complaint that Defendants’ “uncompensated appropriation of [defendants’ materials] would adversely affect the market or potential market for Plaintiffs’ copyrighted works,” Plaintiffs’ complaint could be amended to do so.

Note that while the court’s ruling on this motion was by no means a positive for Defendants, considering that dismissal at the pleadings stage (what Defendants were seeking) is strongly disfavored, the ruling should not have come as a surprise to any of the parties.

Of greater legal interest is that in addressing Defendants’ 12(b)(6) motion, this court acknowledged that various other circuits have recognized that under certain circumstances, a fair use determination can be made at the motion to dismiss stage, an issue that the Fifth Circuit has not appeared to address directly until now. See Section “G” (5) Order at 930-931, fn. 220.

Also important to note is that this court disposed of Plaintiffs’ argument that the fair use doctrine does not apply to sampling of sound recordings. The court pointed out that 17 U.S.C. §107 is a “statutory exception under the Copyright Act to the generally exclusive set of rights given to copyright holders, and Plaintiffs have not pointed to any language in Section 107 of the Copyright Act that excludes the fair use affirmative defense in instances of digital sampling.” Id. at 930. The court also made clear that Plaintiffs’ reliance on the Sixth Circuit’s opinion in Bridgeport Music, Inc. v. Dimension Films was misplaced, pointing out that rather than standing for the proposition that fair use does not apply to sound recordings, Bridgeport specifically countenanced the possibility that on remand, the trial judge could consider a fair use defense to the sampling claims at issue.

So another perhaps dubious copyright claim has ended, but not so fast on the celebrations. It was no sooner than the ink had dried on the order for dismissal that Formation became the subject of another copyright lawsuit, this time by indie filmmaker Kimberly Roberts.

Roberts alleges that she licensed part of her documentary “Trouble the Water” (concerning Roberts’ experiences in Hurricane Katrina) to Prettybird Pictures, the makers of Beyoncé’s Formation video. Roberts claims that she has not been paid for her licensed material, and that her copyrighted work has been used by Beyoncé and crew in concerts and other videos without authorization. Stay tuned for developments...